Offensive Language Charges – Keep Your Hands In Your Pockets

Can you believe that with all of the language that we hear daily on television, in moves, newspapers and on radio that those same words can be offensive? It all depends on the circumstances in which they are used.

If you have been charged for telling someone to ‘fuck off’, or worse, read on – you might not have committed an offence at all!

Time and time again, people are prosecuted for using the word ‘fuck’ in one of its many derivatives – or other words, such as the “c” word. I won’t spell the rest of the word in case those with heightened sensitivity apply the law of morality to a legal issue.

When morality collides with legality – normally only when a decision is handed down in the Local Court dismissing such a prosecution – the real name calling commences.

It is hard to forget the day that I defended a young man who left a hotel at the Rocks shortly after midnight on a Monday. He was intoxicated and stood near a police bus with tinted windows parked outside a police station, extended his third finger and said “you’re fucked” in a voice loud enough for the ten or so officers on the bus to feel offended – or perhaps it was their belief that other members of the public were offended. I will consider both issues in due course. The matter was dismissed with costs.

Magistrate Pat O’Shane was wrongly blamed by those ignorant of the law. Shock jocks called for Her Honour to be sacked. The police commissioner publicly denounced the decision. The Director of Public Prosecutions office wrote to me indicating that an appeal was being considered. Politicians barked loudly with talk of law and order – as though an election was looming. The media loved it – aiding and abetting a change of standards over time by allowing the frequent use of such language, yet in some instances critical of the decision. A double standard or simply free speech?

There was no appeal. The law has not changed. The law correctly applied by the learned Magistrate still applies today. Would the other pub-goers have been offended? Hardly.

As far back as 1966, propositions were laid down in the case of Ball v McIntire (1966) 9FLR 237 as follows:

“Behaviour to be offensive…must…be such as is calculated to wound the feeling, arouse anger of resentment or disgust or outrage in the mind of the reasonable person.” “Conduct which offends against the standards of good taste or good manners which is a breach of the rules of courtesy or runs contrary to accepted social rules may be ill advised, hurtful, not proper conduct.”…”I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions.”

Returning to the question of whether the police were offended. In the decision of Anderson, an unreported decision of the court of Criminal Appeal in 1995, the Court was examining a complaint of a police officer repeatedly using the word “fuck” directed at another police officer within the hearing of the public foyer. His Honour Meagher JA noted the following:

“Undoubtedly the behaviour of the opponent (officer) was unchivalrous and unbecoming of the office he occupies. This is, however a long way from the language he allegedly used being offensive in any legal sense…there was no evidence that persons in the public area were ever offended, nor that the public area was frequented by gentle old ladies or convent school girls. Bearing in mind that we are living in a post-Chatterly, post-Wolfenden age, taking into account all circumstances, and judging the matter from the point of view of reasonable contemporary standards, I cannot believe Sergeant Anderson’s language was legally “offensive”.

In fact, it was held in Anderson that the word “fuck” was part of the police culture. Three players of the winning rugby league side in a recent grand final, on national television dropped the word “fuck” in one form or another. Both that word and the “c” word have been used on the show Sex in the City and others, in print media and on radio. Sportsmen are frequently seen and heard using the word on television. For a well written and well researched discussion and history of the use of such language and its treatment by the law, one need go no further than the decision of respected Magistrate David Heilpern in the case of Police v Butler [2003] NSWLC 2.

The double standard of police prosecuting people for language that they undoubtedly use themselves continues. Whether or not such language is truly offensive in legal terms depends very much on the nature of the words, the manner in which they are spoken and the time and place that they are uttered.

Hopefully the reasonable person and the reasonable police officer have broad shoulders and thick skin – particularly police officers who come into contact with persons and such language frequently.

Too many people are unaware of their rights in this regard and have been prosecuted and possibly convicted for the offence of offensive language – when in many of their respective circumstances a valid defence was available to them.

Offensive Language prosecution can be a tool improperly used by police to silence the impolite or disrespectful. Those who are socio-economically disadvantaged are easy targets. It used to be said in legal circles that the offence of Offensive Language completed the trifecta when added to charges of Assault Police and Resist Police.

There are many examples of person the writer has successfully defended on these types of matters. The man who, with friends at a restaurant, was collectively told by a police woman to “treat the staff with more respect” and replied in a disbelieving tone, “Fuck off?” (ie. you cannot be serious) found out that the officer was serious when he was arrested, handcuffed and taken back to the police station to be charged. The cuffs were removed so that he could pay for his share of the meal! His recollection of the language used by police whilst he was in custody is hilarious. I said then that the time had not yet come when the first course on any menu in a restaurant was a lesson in etiquette by a member of the police service!

The ultimate power play is to arrest or deprive a person of their liberty for the purpose of commencing a prosecution for Offensive Language. In many circumstances it is a blatant abuse of power. Decriminalization may be a step in the right direction – but contemporary morality and contemporary legality are poles apart – and any attempt at legislation to bridge that gap would be politically unsustainable – perhaps to the delight of the media